Facing a new reversal in federal court, the Bush administration is
finding its options narrowed in its effort to stop congressional
testimony from former White House counsel Harriet Miers and chief of
staff Joshua Bolten regarding the firing of nine U.S. attorneys in 2006.

The administration had asserted a blanket claim of executive privilege
in the face of congressional subpoenas, but U.S. District Judge John
Bates rejected that claim as unprecedented and, on Tuesday, denied the
Justice Department’s request for a stay pending an appeal.

Under the ruling, Miers and Bolten now must appear before the House
Judiciary Committee to testify about the White House role in the
firings and produce documents sought by the committee.
“The Court will deny the Executive's request for a stay,” Bates ruled
Tuesday. “Hence, the Executive should respond to the document aspect of
the subpoenas by producing non-privileged material and identifying more
specifically the materials it is withholding on a claim of executive
privilege.

“It is on Ms. Miers's appearance that the dispute principally focuses
This decision should not, however, foreclose the parties' continuing
attempts to reach a negotiated solution. Both sides indicated that
discussions regarding an accommodation have resumed.”

Bates's ruling said the White House “has failed to demonstrate that it
has a substantial likelihood of success on the merits of the absolute
immunity issue or that it has even raised a question “so serious,
substantial, difficult and doubtful,” as to warrant suspending the
effect of the July 31st Order pending appeal."

“The Executive’s argument boils down to a claim that a stay is
appropriate because the underlying issue is important," Bates wrote.
"But that is beside the point and does not demonstrate a likelihood of
success on the merits. Simply calling an issue important -- primarily
because it involves the relationship of the political branches -- does
not transform the Executive’s weak arguments into a likelihood of
success or a substantial appellate issue. Hence, the Court concludes
that this prong of the stay pending appeal analysis cuts strongly in
favor of the Committee."

Three weeks ago, White House Counsel Fred Fielding sent a letter to
House Judiciary Committee Chairman John Conyers requesting a meeting to
negotiate Miers and Bolten’s congressional testimony in light of
Bates's ruling.

In his letter to Conyers following Bates’s ruling, Fielding said the
White House was interested in working “cooperatively to resolve these
issues.”

“Toward that end, and hopefully as a prelude to meaningful discussions
between us, I propose that members of our respective staffs meet as
early as next week to re-commence discussing possibilities for reaching
an accommodation between the Branches in this matter,” Fielding wrote
Friday in his letter to Conyers.

“As I know you appreciate, this litigation is very important in
determining constitutional contours governing certain relations between
the Executive and Legislative Branches in the Congressional oversight
setting,” Fielding wrote. “Accordingly, the Department of Justice has
now filed an appeal in this matter, and is also seeking a stay of the
decision pending review by the U.S. Court of Appeals for the D.C.
Circuit.

"That course of action will provide appellate consideration of the
novel questions at stake in this matter and will enable the parties to
obtain, if it should prove necessary, a final decision in this
important matter...However, the fact that the Executive has notice an
appeal in this matter does not signify that we think further litigation
is the exclusive path forward.”

But while the White House negotiated with Conyers, DOJ lawyers were
hopeful that Bates would grant the administration a stay, which would
have likely delayed the matter until the end of Bush's term at which
time the subpoenas for Bolten and Miers will expire.

The DOJ rejected that argument, and told Bates last week that a stay
“represents the best hope of promoting an accommodation between the two
branches.”

However, House counsel Irv Nathan said negotiations have been "completely useless."

"We have not found willing partners on the other side of the table,"
Nathan said in court Wednesday, telling Bates that "we're being dunced
around here."

Bates, a Bush appointee, agreed. He said he didn’t believe that the
White House was serious about entering into a good faith agreement with
Congress in exchange for Miers testimony.

“Had the litigants indicated that a negotiated solution was foreseeable
in the near future, the Court may have stayed its hand in the hope that
further intervention in this dispute by the Article III branch would
not be necessary,” Bates wrote. “As it stands, however, the Court must
decide the questions presented to it. But there is still ample time for
the parties to reach an accommodation. The Court's July 31, 2008 Order
does not compel Ms. Miers to appear at any particular date.

Conyers lauded Bates’s ruling Tuesday, and said he intends to call
Miers to testify before his committee on Sept 11. Conyers gave the
White House until Sept. 4 to produce documents relevant to the attorney
firings.

"Today's ruling clearly rejects the White House's efforts to run out
the clock on the Committee's investigation of DOJ politicization this
Congress,” Conyers said Tuesday. “I am heartened that Judge Bates
recognized that the public interest in this matter is best served by
the furtherance of the Committee's investigation. The Committee intends
to promptly schedule a hearing with Ms. Miers and stands ready as
always to consider any reasonable offer of accommodation with the White
House."

The House Judiciary Committee subpoenaed Miers and Bolten last year,
but the officials were instructed by President George W. Bush to ignore
the subpoenas. Bush claimed Bolten and Miers were immune to
congressional subpoenas and any information they may have related to
the firings was protected by executive privilege. The House voted to
hold Bolten and Miers in contempt of Congress. It was the first time in
25 years a full chamber of Congress voted on contempt of Congress
citation.

Bates said in a July 31 order that the White House’s legal argument of
executive privilege was "entirely unsupported by existing case law."
Bates said Miers could invoke executive privilege on a
question-by-question basis. But he said Miers must comply with the
congressional subpoena to exercise that right.

“... The Executive cannot identify a single judicial opinion that
recognizes absolute immunity for senior presidential advisors in this
or any other context,” Bates wrote in a 93-page opinion. "In fact,
there is Supreme Court authority that is all but conclusive on this
question and that powerfully suggests that such advisors do not enjoy
absolute immunity. The Court therefore rejects the Executive’s claim of
absolute immunity for senior presidential aides.

“The aspect of this lawsuit that is unprecedented is the notion that
Ms. Miers is absolutely immune from compelled congressional process.
The Supreme Court has reserved absolute immunity for very narrow
circumstances, involving the President’s personal exposure to suits for
money damages based on his official conduct or concerning matters of
national security or foreign affairs. The Executive’s current claim of
absolute immunity from compelled congressional process for senior
presidential aides is without any support in the case law.”

Documents released by the Department of Justice last year show that
Miers was briefed by DOJ officials about the decision to purge the U.S.
attorneys and was aware that the DOJ would cook up a bogus story to
explain the reason behind the dismissals.

Indeed. In February 2005, Miers suggested to Kyle Sampson, then chief
of staff to Attorney General Alberto Gonzales, that perhaps all 93 U.S.
attorneys should be fired.

That idea was rejected, but Sampson spent nearly two years working on a
list of U.S. attorneys to purge on the basis that they were disloyal.
All 93 federal prosecutors were ranked by "loyalty to the President and
Attorney General."

Sampson, who was singled out in a report by the Justice Department's
Inspector General two weeks ago for violating civil service laws by
using a political litmus test to guide his hiring decisions at the
agency, wrote to Miers suggesting "a limited number of U.S. Attorneys
could be targeted for removal and replacement."